Australian bullying law
This page outlines the shape of Australian law about bullying.
It covers -
This page outlines the shape of Australian law about bullying.
It covers -
- introduction
- remedies
- discrimination
- workplace
safety
- industrial
relations law
- common law
- criminal
law
- other
The following pages discuss
specific cases that illustrate that law, highlight damages awards and identify
some landmarks in Australian bullying litigation.
introduction
As indicated in preceding pages, the conceptualisation and acceptability of bullying in Australian law has varied significantly over time: what was considered in the 1850s, 1900s or 1950s to be unremarkable is now often penalised.
Legal frameworks regarding bullying are diverse. There is no single national anti-bullying statute and no definitive nationally-acceptable legal characterisation of what constitutes bullying. The federal nature of law in Australia means that recognition of bullying varies from jurisdiction to jurisdiction. Targets of bullying accordingly rely on a range of statute and common law in dealing with the problem.
Legal responses to bullying have essentially taken three forms.
The first is action by the state, acting on behalf of targets and the community in addressing egregious abuses (primarily under criminal law).
That action is generally punitive and provides little or no compensation for targets. It may punish perpetrators and deter future offenders buy does not necessarily provide any compensation for suffering experienced by the target and his/her associates.
The second response is action by targets, for example suing the perpetrators of bullying in order to stop the particular offence, gain some compensation for suffering and send a signal to potential offenders.
The third response is articulation of industry codes, best practice statements or statements of principle, such as the WorkSafe Western Australia 2006 Code of Practice: Violence, Aggression and Bullying at Work and the WorkSafe Victoria 2005 Guide to Managing OHS in Community Services.
In practice those statements may be ignored by perpetrators and by the employers of perpetrators (commitment by the Australian Defence Force to recurrent aspirational statements is questionable). However, they are important as a mechanism for ensuring that organisations are aware that bullying in the workplace or schools is unacceptable. They may also be tied to statutory insurance schemes, with some workplace insurance not covering organisations that have failed to protect employees under occupational health & safety legislation.
remedies
Legal remedies in Australia have included action under -
introductionAs indicated in preceding pages, the conceptualisation and acceptability of bullying in Australian law has varied significantly over time: what was considered in the 1850s, 1900s or 1950s to be unremarkable is now often penalised.
Legal frameworks regarding bullying are diverse. There is no single national anti-bullying statute and no definitive nationally-acceptable legal characterisation of what constitutes bullying. The federal nature of law in Australia means that recognition of bullying varies from jurisdiction to jurisdiction. Targets of bullying accordingly rely on a range of statute and common law in dealing with the problem.
Legal responses to bullying have essentially taken three forms.
The first is action by the state, acting on behalf of targets and the community in addressing egregious abuses (primarily under criminal law).
That action is generally punitive and provides little or no compensation for targets. It may punish perpetrators and deter future offenders buy does not necessarily provide any compensation for suffering experienced by the target and his/her associates.
The second response is action by targets, for example suing the perpetrators of bullying in order to stop the particular offence, gain some compensation for suffering and send a signal to potential offenders.
The third response is articulation of industry codes, best practice statements or statements of principle, such as the WorkSafe Western Australia 2006 Code of Practice: Violence, Aggression and Bullying at Work and the WorkSafe Victoria 2005 Guide to Managing OHS in Community Services.
In practice those statements may be ignored by perpetrators and by the employers of perpetrators (commitment by the Australian Defence Force to recurrent aspirational statements is questionable). However, they are important as a mechanism for ensuring that organisations are aware that bullying in the workplace or schools is unacceptable. They may also be tied to statutory insurance schemes, with some workplace insurance not covering organisations that have failed to protect employees under occupational health & safety legislation.
remediesLegal remedies in Australia have included action under -
- Anti-Discrimination
Legislation
- Common
Law (eg for physical and/or psychological injury)
- Constructive
Dismissal aspect of Industrial Relations Law
- Occupational
Health & Safety Law
- Workers
Compensation schemes
- Criminal
Law
Those remedies reflect
expectations about individual responsibilities and restrictions on things such
as assault and workplace discrimination. Sodomising a cadet as part of military
hazing, setting fire to an apprentice as part of workplace initiation or
leaving pork chops in a Muslim colleague's locker is frowned on; physical
injury may be rewarded by criminal sanctions against the perpetrator. The
bullying that occurs among university academics and in the professions may
simply go unreported and be accepted as appropriate industrial discipline aka
professional practice.
They also reflect expectations about duties of care and recognition that employers may be in a position to prevent particular abuses or track malpractice (for example articulate and implement a policy that prohibits use of a corporate network for sending/receiving obscene, defamatory or threatening content). Notions of teacher and employer responsibility are evident in New South Wales v Lapore; Samin v Queensland; Rich v Queensland[2003] HCA 4.
Remedies are inevitably an area of disagreement in Australian law.
One reason is that the scale of compensation for many offences (and penalties on the perpetrators of those offences) is low. Some targets will accordingly seek to use tort law (particularly regarding physical and psychological injury) rather than Commonwealth or state/territory anti-discrimination law, which in practice is somewhat toothless.
Another reason is the cost of personal litigation in Australia. As mentioned elsewhere in this note, it is likely that some targets have been deterred by the financial cost (solicitors, barristers, expert witnesses) and emotional cost (time, stress) associated with taking perpetrators and bystanders to court. That cost is particularly significant if any compensation awarded turns out to be lower than the target's legal fees.
Not all litigation is successful. In the UK, for example, Becky Walker was unsuccesful in action against Derby County Council, being awarded to ordered to pay the Council's costs (estimated at £30,000). The judge in that case revealed that if she had won she would only have been awarded £1,250 ... far less than her own costs, which would have been upwards of £15,000.
discrimination law
The Commonwealth and state/territory governments have established a range of statutes regarding discrimination in the workplace and other environments, reflecting expectations about human rights.
Those statutes recognise that some discrimination is legal (eg blind people and their guide dogs cannot pilot passenger aircraft). They also seek to prevent and punish illegal discrimination, ie discrimination in employment, finance, access to facilities and so forth based inappropriately on attributes such as gender, sexual or religious affinity, age and ethnicity.
Courts have acknowledged that bullying may embody discrimination, with someone for example being targeted on the basis of faith, ethnicity or identity as a GLBT person. Targets can thus potentially deploy discrimination law to address bullying, typically through a mediation process in the first instance and thereafter through a court.
Courts have also acknowledged that an organisation's response to bullying - in particular a failure to respond - may be subject to discrimination law. One example is FP and FQ on behalf of FR v Department of Education & Training; FP v Department of Education & Training [2003] NSWADT 68 (17 April 2003).
Primers include Discrimination Law & Practice(Leichhardt: Federation Press 2004) by Chris Ronalds & Rachel Pepper. Other works are highlighted here.
workplace
safety law
State/territory 'workplace safety' or 'occupational health & safety' (OH&S) law covers relationships in the workplace, including those in factories, educational institutions and professions.
It typically imposes a duty on employers to ensure the health, safety and welfare at work of all employees. That duty has been interpreted broadly - in for example Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 - and encompasses systems of work and the working environment, including supervision and instruction.
The expectation is that employers are responsible for what takes place within the workplace and thus, for example, cannot comprehensively escape liability by claiming that they were unaware of what managers were doing to subordinates or staff were doing to each other.
The salient legislation is -
They also reflect expectations about duties of care and recognition that employers may be in a position to prevent particular abuses or track malpractice (for example articulate and implement a policy that prohibits use of a corporate network for sending/receiving obscene, defamatory or threatening content). Notions of teacher and employer responsibility are evident in New South Wales v Lapore; Samin v Queensland; Rich v Queensland[2003] HCA 4.
Remedies are inevitably an area of disagreement in Australian law.
One reason is that the scale of compensation for many offences (and penalties on the perpetrators of those offences) is low. Some targets will accordingly seek to use tort law (particularly regarding physical and psychological injury) rather than Commonwealth or state/territory anti-discrimination law, which in practice is somewhat toothless.
Another reason is the cost of personal litigation in Australia. As mentioned elsewhere in this note, it is likely that some targets have been deterred by the financial cost (solicitors, barristers, expert witnesses) and emotional cost (time, stress) associated with taking perpetrators and bystanders to court. That cost is particularly significant if any compensation awarded turns out to be lower than the target's legal fees.
Not all litigation is successful. In the UK, for example, Becky Walker was unsuccesful in action against Derby County Council, being awarded to ordered to pay the Council's costs (estimated at £30,000). The judge in that case revealed that if she had won she would only have been awarded £1,250 ... far less than her own costs, which would have been upwards of £15,000.
discrimination law The Commonwealth and state/territory governments have established a range of statutes regarding discrimination in the workplace and other environments, reflecting expectations about human rights.
Those statutes recognise that some discrimination is legal (eg blind people and their guide dogs cannot pilot passenger aircraft). They also seek to prevent and punish illegal discrimination, ie discrimination in employment, finance, access to facilities and so forth based inappropriately on attributes such as gender, sexual or religious affinity, age and ethnicity.
Courts have acknowledged that bullying may embody discrimination, with someone for example being targeted on the basis of faith, ethnicity or identity as a GLBT person. Targets can thus potentially deploy discrimination law to address bullying, typically through a mediation process in the first instance and thereafter through a court.
Courts have also acknowledged that an organisation's response to bullying - in particular a failure to respond - may be subject to discrimination law. One example is FP and FQ on behalf of FR v Department of Education & Training; FP v Department of Education & Training [2003] NSWADT 68 (17 April 2003).
Primers include Discrimination Law & Practice(Leichhardt: Federation Press 2004) by Chris Ronalds & Rachel Pepper. Other works are highlighted here.
workplace
safety lawState/territory 'workplace safety' or 'occupational health & safety' (OH&S) law covers relationships in the workplace, including those in factories, educational institutions and professions.
It typically imposes a duty on employers to ensure the health, safety and welfare at work of all employees. That duty has been interpreted broadly - in for example Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 - and encompasses systems of work and the working environment, including supervision and instruction.
The expectation is that employers are responsible for what takes place within the workplace and thus, for example, cannot comprehensively escape liability by claiming that they were unaware of what managers were doing to subordinates or staff were doing to each other.
The salient legislation is -
- Occupational
Health & Safety (Commonwealth Employees) Act 1991(Cth)
- Occupational
Health & Safety Act 1989(ACT) - here
- Occupational
Health & Safety Act 2000(NSW) - here
- Workplace
Health & Safety Act 2007 (NT) -here
- Workplace
Health & Safety Act 1995 (Qld) - here
- Occupational
Health, Safety & Welfare Act 1986 (SA) - here
- Workplace
Health & Safety Act 1995 (Tas) - here
- Occupational
Health & Safety Act 2004(Vic) - here
- Occupational
Safety & Health Act 1984(WA) - here
In applying those statutes
courts have accepted characterisations of bullying highlighted in preceding
pages of this note, for example WorkCover Victoria's characterisation of
workplace bullying as "repeated, unreasonable behaviour directed towards an
employee or group of employees that creates a risk to health and safety"
and the NSW Law Society's
behaviour that intimidates, offends, degrades, insults or
humiliates a worker, possibly in front of co-workers, clients or customers and
which includes physical or psychological behaviour.
As the following page
indicates, OH&S legislation has been used to address instances of bullying,
with financial penalties for those who directly abused people in the workplace
and for company directors or managers who were not directly involved in that
abuse but who turned a blind eye to bullying.
It is typically complemented by statutes that mandate workplace insurance, including -
It is typically complemented by statutes that mandate workplace insurance, including -
- Workers
Compensation Act 1951 (ACT) -here
- Workplace
Injury Management & Workers Compensation Act 1998 (NSW) - here
- Workers'
Rehabilitation & Compensation Act (NT) - here
- Workers'
Rehabilitation & Compensation Act 2003 (Qld) - here
- WorkCover
Corporation Act 1994 (SA) -here
- Workers
Rehabilitation & Compensation Act 1988 (Tas) - here
- Workers
Compensation Act 1958 (Vic) -here
- Workers'
Compensation & Injury Management Act 1981 (WA) - here
That legislation is significant
because it may feature caps on damages awards.
industrial
relations law
Most Australians are employed under contract law (an agreement specific to the relationship between the employer and employee) or under an enterprise/industry agreement (covering some/all employees as a class of people).
Irrespective of OH&S protection, industrial relations law covering such agreements is relevant because bullying - exacerbated by indifference on the part of the employer - may become so unbearable as to force an individual to resign from their job. That undesired departure (which on occasion means the individual forgoes share option vesting opportunities, loses sick/holiday leave or becomes unemployed) can be characterised as constructive dismissal and potentially allow the person to claim compensation under industrial relations law and contract law.
One example is Dillon v Arnotts Biscuits (1997) AIRC, discussed in the following page, where the court found that incessant bullying by a manager had resulted in constructive dismissal through the empoyee's resignation. Another example is Police Service of NSW v Batton[2000] NSWIRComm 79, where a detective was victimised for whistleblowing after refusing a bribe from a colleague, thereafter being incapacitated through a psychiatric disorder that forced his retirement.
common
law
Much injury - whether physical or psychological - in Australia is dealt with through common law, ie by courts ruling on the basis of precedent provided by decisions in earlier courts or superior courts.
Common law has traditionally provided little, if any, protection against harassment. It does however address injury. Targets of bullying may thus use common law in seeking compensation for physical injury (eg scarring incurred through a workplace hazing) and loss (eg destruction of personal property) or for psychological injury incurred through bullying in the workplace, as a student or other environments such as participation in a team sport.
Points of entry to the literature include Law of Torts 3 ed (Sydney: Butterworths 2004) by Balkin & Davis, Torts: Cases & Commentary 5 ed (Sydney: Butterworths 2002) by Harold Luntz & David Hambly, Luntz' Assessment of Damage for Personal Injury and Death: General Principles ( Chatswood: LexisNexis Butterworths 2006), Damages for Psychiatric Injury (Leichhardt: Federation Press 2004) andEmployer Liability for Workplace Trauma(Aldershot: Ashgate 2002) by Des Butler, andStewart's Guide to Employment Law(Leichhardt: Federation Press 2008) by Andrew Stewart.
Common law may also provide protection (and potential damages) in relation to employment contracts, with employers for example being held to have made a commitment to a bullying-free workplace through an employment contract and an associated human resource manual or code of practice. One instance is the decision in Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120, where the Full Federal Court upheld a substantial damages award to Nikolich over breach of contract in the finance sector. That case is discussed in the following page.
criminal
law
Criminal law is discussed in more detail here. It encompasses offences such as -
industrial
relations law Most Australians are employed under contract law (an agreement specific to the relationship between the employer and employee) or under an enterprise/industry agreement (covering some/all employees as a class of people).
Irrespective of OH&S protection, industrial relations law covering such agreements is relevant because bullying - exacerbated by indifference on the part of the employer - may become so unbearable as to force an individual to resign from their job. That undesired departure (which on occasion means the individual forgoes share option vesting opportunities, loses sick/holiday leave or becomes unemployed) can be characterised as constructive dismissal and potentially allow the person to claim compensation under industrial relations law and contract law.
One example is Dillon v Arnotts Biscuits (1997) AIRC, discussed in the following page, where the court found that incessant bullying by a manager had resulted in constructive dismissal through the empoyee's resignation. Another example is Police Service of NSW v Batton[2000] NSWIRComm 79, where a detective was victimised for whistleblowing after refusing a bribe from a colleague, thereafter being incapacitated through a psychiatric disorder that forced his retirement.
common
law Much injury - whether physical or psychological - in Australia is dealt with through common law, ie by courts ruling on the basis of precedent provided by decisions in earlier courts or superior courts.
Common law has traditionally provided little, if any, protection against harassment. It does however address injury. Targets of bullying may thus use common law in seeking compensation for physical injury (eg scarring incurred through a workplace hazing) and loss (eg destruction of personal property) or for psychological injury incurred through bullying in the workplace, as a student or other environments such as participation in a team sport.
Points of entry to the literature include Law of Torts 3 ed (Sydney: Butterworths 2004) by Balkin & Davis, Torts: Cases & Commentary 5 ed (Sydney: Butterworths 2002) by Harold Luntz & David Hambly, Luntz' Assessment of Damage for Personal Injury and Death: General Principles ( Chatswood: LexisNexis Butterworths 2006), Damages for Psychiatric Injury (Leichhardt: Federation Press 2004) andEmployer Liability for Workplace Trauma(Aldershot: Ashgate 2002) by Des Butler, andStewart's Guide to Employment Law(Leichhardt: Federation Press 2008) by Andrew Stewart.
Common law may also provide protection (and potential damages) in relation to employment contracts, with employers for example being held to have made a commitment to a bullying-free workplace through an employment contract and an associated human resource manual or code of practice. One instance is the decision in Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120, where the Full Federal Court upheld a substantial damages award to Nikolich over breach of contract in the finance sector. That case is discussed in the following page.
criminal
law Criminal law is discussed in more detail here. It encompasses offences such as -
- theft
- assault
(including threats and physical contact)
- unauthorised
confinement
- destruction
of property
and other matters that are
addressed by the state.
other
It is useful to recognise that bullying on occasion involves action that may be more appropriately addressed as another offence. Persistent harassment via SMS, email and phone calls might for example be dealt with asstalking, covered under state/territory anti-stalking legislation such as the Crimes Act 1900 (ACT).
State/territory governments have on occasion, albeit with little publicity, withdrawn authorisation of organisations/individuals to train apprentices, for example under theVocational Education & Training Act 1990 (Vic).
Australian courts have not held intermediaries (such as Telstra, Australia Post, MySpace and BigPond) responsible for bullying when those entities have been unaware that bullying is occurring.
other It is useful to recognise that bullying on occasion involves action that may be more appropriately addressed as another offence. Persistent harassment via SMS, email and phone calls might for example be dealt with asstalking, covered under state/territory anti-stalking legislation such as the Crimes Act 1900 (ACT).
State/territory governments have on occasion, albeit with little publicity, withdrawn authorisation of organisations/individuals to train apprentices, for example under theVocational Education & Training Act 1990 (Vic).
Australian courts have not held intermediaries (such as Telstra, Australia Post, MySpace and BigPond) responsible for bullying when those entities have been unaware that bullying is occurring.
Australian cases 1
This page illustrates the Australian bullying regime by highlighting some litigation.
It covers -
This page illustrates the Australian bullying regime by highlighting some litigation.
It covers -
- Cox v NSW
- Maddaford v Coleman
- Dillon v Arnotts Biscuits
- Batton v NSW Police Service
- Worksafe
Victoria v Ballarat
Radio
- McKenna v Victoria Police
- Blenner-Hassett v Murray Goulburn Co-operative
- Arnold v Midwest Radio
Cox v NSWCox v State of New South Wales [2007] NSWSC 471 - here
Cox is the leading case on school responsibility for bullying of children by their peers, with educational institutions and authorities owing a duty of care to students.
The NSW Supreme Court awarded $220,000 for pain and suffering to 18-year-old Benjamin Cox after finding that the NSW state Education Department had failed in its duty of care todeal with ongoing bullying. Cox's mother Angela had sued NSW on his behalf, claiming bullying, which started in infants school and continued in later years, had resulted in her son having little education and being unable to work.
The court heard that, while at Woodberry Public School in 1994 and 195, Cox was hit and choked by an older boy (an attack recognised through compensation from the Victims Compensation Tribunal). His mother reported the events - one Education Dept representative reportedly commented that “bullying builds character and that he thought it was a good thing that Ben got bullied" - but the bullying continued, with the perpetrator reportedly stating "It was funny how the police came to my house. And if they come again, I’ll threaten to kill you".
By the time he started high school Cox reportedly thought school a "scary proposition" and became a recluse. "He didn't like crowds, he didn't like teachers, didn't like the work". He had only completed schooling up until the end of year 7. An attempt at home schooling had failed. His mother said he rarely went out, had no friends, "just locks himself in his room playing PlayStation games", and was unable to hold down a job.
Simpson J commented that the school's responses to Mrs Cox’s repeated reports were dismally inadequate.
This was not a case of attempting to prevent something which may
or may not have occurred; what was called for were steps that would eradicate a
known course of conduct.
She concluded that Cox's
adolescence has been all but destroyed; his adulthood will not be
any better. He will never know the satisfaction of employment.
He will suffer anxiety and depression, almost certainly, for the rest of his
life. He is unlikely to form any relationships, romantic or platonic. He has no
friends and is unlikely to make any.
NSW was ordered to pay Cox's
legal costs.
Dillon
v Arnotts Biscuits
Dillon v Arnotts Biscuits Ltd AIRC No. 31680 of 1997 (10 September 1998)
Dillon provides an example of constructive dismissal attributable to bullying.
Ms Dillon was employed by Arnotts Biscuits Limited as a packer, ie on the production line rather than in an office. She had faced ongoing bullying by her supervisor, "to the point of reducing her to tears". After returning to the factory from a work-related illness she was assigned to an isolated workstation by herself, facing a blank wall with her back to her fellow employees. The supervisor was said to have singled her for ‘special treatment’ to “toughen her up”.
In response to what the Australian Industrial Relations Commission described as "incessant bullying" Dillon resigned. The Commission found that the bullying of a amounted to "constructive dismissal" (ie she had been treated in a way that forced her to resign rather than being directly fired).
Arnotts was ordered to reinstate Dillon, who recommenced work and was reimbursed for income lost through the constructive dismissal.
Dillon
v Arnotts BiscuitsDillon v Arnotts Biscuits Ltd AIRC No. 31680 of 1997 (10 September 1998)
Dillon provides an example of constructive dismissal attributable to bullying.
Ms Dillon was employed by Arnotts Biscuits Limited as a packer, ie on the production line rather than in an office. She had faced ongoing bullying by her supervisor, "to the point of reducing her to tears". After returning to the factory from a work-related illness she was assigned to an isolated workstation by herself, facing a blank wall with her back to her fellow employees. The supervisor was said to have singled her for ‘special treatment’ to “toughen her up”.
In response to what the Australian Industrial Relations Commission described as "incessant bullying" Dillon resigned. The Commission found that the bullying of a amounted to "constructive dismissal" (ie she had been treated in a way that forced her to resign rather than being directly fired).
Arnotts was ordered to reinstate Dillon, who recommenced work and was reimbursed for income lost through the constructive dismissal.
Maddaford
v ColemanInspector Maddaford v Coleman (NSW) Pty Ltd & Or [2004] NSWIRComm 317 - here
Maddaford illustrates that employers can be held liable where the risk of bullying is foreseeable. It is insufficient to react to bullying: employers need to be proactive in preventing bullying in order to ensure a safe and healthy working environment (and thus meet obligations under workplace OH&S legislation noted in the preceding page).
The case involved bullying of the 16 year old timber joinery worker Dwayne Doyle (referred to earlier in this note) whose co-workers had wrapped him in plastic, stuffed his mouth with sawdust and glue, and whirled him round on a trolley. He claimed that bullying exacerbated his existing health problems and, perhaps unsurprisingly, had not found it a pleasurable experience.
The full New South Wales Industrial Relations Commission confirmed an earlier decision by the NSW Chief Industrial Magistrate that the Coleman company had breached its duty under s 8 of the Occupational Health and Safety Act 2000 (NSW) in failing to ensure a healthy and safe workplace. Coleman's two directors and factory foreman were found to be personally liable under s 26 of that Act, even though not directly involved in the incident.
The Magistrate had found that Coleman had breached its s 8 duty when 16 year old Dwayne had been subjected to a 30-minute 'initiation' bullying by colleagues, including being wrapped in clingwrap from neck to toe, threatened with violence, spun on a trolley, covered in sawdust and glue, and repeatedly having sawdust forced into his mouth between bouts of having a fire hose squirted into his mouth. Doyle was an asthmatic. He claimed that the mistreatment left him with increased respiratory difficulties and damaged his mental health.
In deciding appeals by the Directors and by NSW Workcover the Commission's Full Bench indicated that substantial penalties are needed to force directors to give workplace bullying appropriate attention, commenting that an employer and its directors have a duty to prevent employees from "having fun at the expense of another person" and that courts are unsympathetic to claims that bullying involves "harmless pranks or workplace high-jinks".
WorkCover had earlier prosecuted all the employees involved in the initiation: all were convicted, with one being fined $500.
Batton v NSW Police Service Barry Michael Batton v NSW Police Service(1999) 46 AILR 5-229 NSWIRC (IRC 448 of 1997) here
Batton is another example of constructive dismissal, ie where there is no firing but the employee is forced out of the job because of bullying.
In this instance Batton, a detective within the NSW Police Service, was bullied for first refusing a bribe from a fellow detective and then reporting that offer to his superiors. If only all officers were that honest and met their obligations under the Police Act 1990 (NSW). The harassment was not addressed by his superiors. It resulted in the detective being incapacitated for work due to a psychiatric disorder, compelling him to seek retirement on medical grounds. He took action under the unfair dismissals provision of the Industrial Relations Act 1996 (NSW).
The NSW Industrial Relations Court held that the disorder was attributable to the bullying and to failure by the Police Service to deal with the bribe and subsequent bullying. The Service's inactivity as Batton's employer was held to have forced him to resign.
WorkSafe Victoria v Ballarat RadioWorkSafe Victoria v Ballarat Radio Pty Ltd - Ballarat Magistrate's Court (August 2004)
The Radio Ballarat case illustrates action by a state occupational health & safety agency (WorkSafe Victoria) in addressing bullying independent of litigation by a bully's target. That action is significant as a demonstration that government still has a role in the 'age of the internet (contrary to claims that it will inevitably and quickly "evaporate") and because many targets are reluctant to initiate litigation, given financial and emotional costs.
The target in Ballarat Radio had been verbally abused by Radio announcer Reginald Mowat had subjected fellow employees to verbal abuse and threats of violence while at work on over ten occasions in 2002 and 2003. He had also physically assaulted a colleague. Ballarat Magistrate James Mornane said the "explosive manner" of Mowat in dealing with other employees was "completely inappropriate".
Mornane commented that the incidents were serious, repetitive and extended over a period of time. They resulted in abused colleagues taking time off, being afraid and not wanting to come to work. In one instance a female employee a woman would not leave her office if Mowat was nearby.
Mowat was convicted and fined $10,000 in the Magistrates' Court on two counts relating to intimidating co-workers and for failing to take care for the health and safety of others in the workplace. He was ordered to pay $1,700 costs. The broadcasting company was subsequently fined $25,000 for failing to provide a safe workplace, and $25,000 for failing to provide instruction, training and supervision in relation to bullying. It was also ordered to pay costs of $5,000.
McKenna
v State of VictoriaMcKenna v State of Victoria [1998] VADT 83 (1 June 1998) - here
McKenna involved a sexual harassment claim by Senior Constable Narelle McKenna under the Equal Opportunities Act (Vic), with the target of bullying being awarded $125,000 in general damages for distress, psychological injuryand hurt feelings.
The Victorian Anti Discrimination Tribunal found that McKenna's employer (the Victoria Police) and three of its employees had been responsible for recurrent discrimination and that she had been sexually harassed by a supervisor. The Tribunal considered that bullying was particularly egregious after she complained of harassment. Consistent with the catalogue of abuses highlighted earlier in this note, McKenna had been singled out by senior officers who placed memoranda with negative remarks about her honesty on her personnel file, upgraded a disciplinary sanction without notice and took extraordinary disciplinary action despite knowledge that she had complained about disciplinary abuses.
The unfortunate police officer suffered a breakdown but did not resign. The Tribunal's report was scathing, noting that the bullying was "initiated, supported or endorsed at high levels" and that the Victoria Police had clearly been reluctant over several years to meaningfully implement its own anti-bullying and equal opportunity policy.
The Tribunal's decision was upheld by the Victorian Supreme Court in State of Victoria v McKenna [1999] VSC 310.
Blenner-Hassett v Murray Goulburn
Co-operative Blenner-Hassett v Murray Goulburn Co-operative Pty Limited & Ors - 1999 Victoria County Court (2651/96-Morwell) (PDF)
Blenner-Hassett illustrates both the nastiness of workplace initiation (aka hazing) and use of common law tort claims.
As discussed earlier in this note, teenager Kevin Blenner-Hassett, an apprentice fitter & turner in the Murray Goulburn Co-Op's workshops, underwent bullying himself and witnessed others being bullied. Gebhardt J commented that "In essence he maintains that his life has been inexorably skewed and damaged because of workplace bullying", which amounted to "unacceptable workplace intimidation and bastardization" over several years.
The target was stripped, painted, threatened with rape, recurrently taunted and had the dubious pleasure of seeing a work experience employee suspended over a fire. Almost a decade later he took court action.
An expert witness commented that
it's a shocking thing to do to a person, a human being, at any
age, but being an adolescent is a very vulnerable time because that is the time
when the sense of identity is being formed and so the sense of identity of who
you are, getting back to your point before, about the sense of self, is being
formed from a child, the child sense of identity which is different to the
adult sense of identity, so it's a transition time and therefore a very
vulnerable time in the sense of development of sense of self and sense of
identity. So, to traumatise a person at that age, has devastating - potentially
devastating consequences which it has done in this case, in my opinion.
The Court accepted arguments that the bullying had indeed
traumatised the target and that his employer had been negligent in failing to
prevent the torment. It was unimpressed by suggestions that the abuse was
"training" or harmless "pranks". It awarded $350,000 damages, discussed in the
following page.
Arnold v Midwest Radio
Arnold v Midwest Radio Pty Limited
Marilyn Arnold (no relation to this site's author) worked at the Townsville Independent News, a Queensland newspaper owned by regional broadcaster Midwest Radio. The Qld Equal Opportunity Commission found in 1999 that her manager had recurrently targeted her, although other staff were also bullied in a workplace that illustrated many of examples of what not to do to employees.
His language was "aggressive, bullying, abusive, belittling and sarcastic". He threatened staff with dismissal (including announcements that people were on a 'third & final warning' although no previous warning had been given), played people off against each other (eg falsely telling one of her colleagues that she had made a sexual harassment complaint), used homophobic language in publicly humiliating a gay employee by dumping his desk-top on the floor, and inviting staff into his office where they were given the opportunity of sacking each other. He refused Arnold compassionate leave to see a dying relative because it was "too close to Christmas".
She left her job and experienced health problems. She took action under theWorkplace Health & Safety Act (Qld), rather than the weaker discrimination legislation, arguing that the employer had failed to provide a safe system of work and thereby had breached of its statutory duty under that Act. Breach had resulted in her suffering serious psychological injury, with Midwest unreasonably exposing her to forseeable risk.
During initial litigation the Court was persuaded by that argument, finding that although the manager was entitled to use a "strong hand" in a competitive environment his practice was unacceptable and was causally related to her illness. She was awarded damages of $572,512, including general damages of $65,000, future economic loss of $160,000, $120,000 past carer costs in the past and future carer costs of $100,000.
In Midwest Radio Ltd v Arnold [1999] QCA 20 -here - the Queensland Court of Appeal agreed that she was unlikely to work again but overturned the decision on the basis that she had not satisfied the Court that there had been a breach of the duty of care to avoid psychological injury and that such injury was a reasonably foreseeable consequence of the employer's conduct.
It noted expert evidence that an "average person of normal fortitude" would have suffered anxiety disorder for up to a year because of the bullying, rather than her major depressive disorder. That difference was significant because liability for psychiatric illness was held to exist if it was reasonably foreseeable that a 'normal person' would be so affected.
Arnold v Midwest Radio Arnold v Midwest Radio Pty Limited
Marilyn Arnold (no relation to this site's author) worked at the Townsville Independent News, a Queensland newspaper owned by regional broadcaster Midwest Radio. The Qld Equal Opportunity Commission found in 1999 that her manager had recurrently targeted her, although other staff were also bullied in a workplace that illustrated many of examples of what not to do to employees.
His language was "aggressive, bullying, abusive, belittling and sarcastic". He threatened staff with dismissal (including announcements that people were on a 'third & final warning' although no previous warning had been given), played people off against each other (eg falsely telling one of her colleagues that she had made a sexual harassment complaint), used homophobic language in publicly humiliating a gay employee by dumping his desk-top on the floor, and inviting staff into his office where they were given the opportunity of sacking each other. He refused Arnold compassionate leave to see a dying relative because it was "too close to Christmas".
She left her job and experienced health problems. She took action under theWorkplace Health & Safety Act (Qld), rather than the weaker discrimination legislation, arguing that the employer had failed to provide a safe system of work and thereby had breached of its statutory duty under that Act. Breach had resulted in her suffering serious psychological injury, with Midwest unreasonably exposing her to forseeable risk.
During initial litigation the Court was persuaded by that argument, finding that although the manager was entitled to use a "strong hand" in a competitive environment his practice was unacceptable and was causally related to her illness. She was awarded damages of $572,512, including general damages of $65,000, future economic loss of $160,000, $120,000 past carer costs in the past and future carer costs of $100,000.
In Midwest Radio Ltd v Arnold [1999] QCA 20 -here - the Queensland Court of Appeal agreed that she was unlikely to work again but overturned the decision on the basis that she had not satisfied the Court that there had been a breach of the duty of care to avoid psychological injury and that such injury was a reasonably foreseeable consequence of the employer's conduct.
It noted expert evidence that an "average person of normal fortitude" would have suffered anxiety disorder for up to a year because of the bullying, rather than her major depressive disorder. That difference was significant because liability for psychiatric illness was held to exist if it was reasonably foreseeable that a 'normal person' would be so affected.
Australian cases 2
This page illustrates the Australian bullying regime by highlighting some litigation.
It covers -
This page illustrates the Australian bullying regime by highlighting some litigation.
It covers -
- Emonson v Trustees of the Christian
Brothers
- Naidu v Group 4 Securitas
- Webb v State of Queensland
- Nikolich v Goldman Sachs JB Were
- Hellsing v British Aerospace
Emonson
v Trustees of the Christian Brothers In 2001 18 year old Aaron Emonson was awarded $60,000 by a Victorian County Court after the jury heard that he had endured three years of bullying at his former school, St Patrick's College, Ballarat.
Emonson's solicitor noted that bullying was often a daily occurrence and violent. Emonson had
been
belted on the arm with a piece of wood in a woodwork class; there'd been
another occasion where he'd been hosed down with a water hose, and had been
required to remain at school for the balance of that day in saturated clothing;
there'd been another incident where he had been choked with a length of
material from carpet cord and throughout that period the parents had made
various requests of the school to deal with it
and the response was far less than adequate. ...
He had not progressed well at school and as a result he ceased his schooling at the end of Year 10.
He had not progressed well at school and as a result he ceased his schooling at the end of Year 10.
One of the alleged bullies is reported as stating that Emonson's
treatment was no different to what most St Patrick's students experienced.
"Everyone was doing it to everyone ... We weren't singling Aaron
out."
The court found that the school had breached its duty of care,
having been recurrently alerted by Emonson's parents. Emonson sued the school
for physical and mental injuries caused by the bullying.
The hearing featured an email by a St Patrick's teacher in 1998 detailing problems with bullying in the school and complaining of difficulties in addressing that abuse.
Naidu
v Group 4 Securitas
Naidu v Group 4 Securitas Pty Ltd & Anor[2005] NSWSC 618 - here
Naidu is a leading case regarding the vicariousliability of employers regarding bullying, ie they have legal responsibility for the deeds and misdeeds of their employees (a matter illustrated through Inspector Maddaford v Coleman).
Naidu was a private security executive who sustained substantial psychiatric injuries from over five years of bullying while employed by Group 4 Securitas, which provided security services to News Ltd - particularly to its subsidiary Cumberland Newspapers. That bullying, by a News executive rather than by Group 4, included racist and sexist vilification. It occurred both inside and outside the work environment. The employer was found to be directly and vicariously liable for psychiatric injuries that the Court was told prevent Naidu from working for the rest of his life and will require future hospitalisation.
He was awarded $2 million damages, including lost salary of $70,000 a year until the age of 65, general damages of $200,000 and exemplary damages against News Ltd of $150,000.
Webb
v State of Queensland
Webb v State of Queensland [2006] QADT 8 (23 March 2006) (txt)
Webb illustrates questions about corporate liability, suggesting that it is insufficient for an employer to rely on promulgation of policies and provision of formal complaint mechanisms in a world where some people may be too embarrassed or intimidated to make a formal complaint and where policies are seen to be disregarded.
Rosalie Webb initiated action under the Anti-Discrimination Act 1991 (Qld), alleging that she was sexually harassed by a male co-worker during her employment with Queensland Health, a government entity with a sexual harassment policy and a complaints procedure. Her colleague allegedly engaged in unwanted (and unauthorised) touching, referred to her using sexual epithets, sent her unwanted pornographic email, and made comments about his sex life and her sex life.
Ms Webb notified her employer of her concerns in 2001 and 2002 through informal comments to her supervisor and manager, being told that she should speak to her colleague directly. Nothing could be done unless she lodged a formal complaint.
Qld Health defended its inactivity by claiming there was no vicarious liability for the bullying because it had taken "all reasonable steps" to prevent harassment from occurring in the workplace. The Tribunal disagreed, noting that employers must be proactive, with action taken prior to the making of a formal complaint (ie to prevent bullying) rather than merely in response to a specific complaint. Qld Health had failed to take appropriate action when it became informally aware of the harassment in 2001.
The Tribunal noted questions about fairness in the handling of complaints but concluded that under the legislation a formal complaint was not a precondition for preventing bullying. It was insufficient for the employer to tell Ms Webb to ask another employee to stop bullying.
Qld Health was ordered to pay damages of $14,665 to Ms Webb.
Nikolich v Goldman Sachs JBWere
The hearing featured an email by a St Patrick's teacher in 1998 detailing problems with bullying in the school and complaining of difficulties in addressing that abuse.
Naidu
v Group 4 Securitas Naidu v Group 4 Securitas Pty Ltd & Anor[2005] NSWSC 618 - here
Naidu is a leading case regarding the vicariousliability of employers regarding bullying, ie they have legal responsibility for the deeds and misdeeds of their employees (a matter illustrated through Inspector Maddaford v Coleman).
Naidu was a private security executive who sustained substantial psychiatric injuries from over five years of bullying while employed by Group 4 Securitas, which provided security services to News Ltd - particularly to its subsidiary Cumberland Newspapers. That bullying, by a News executive rather than by Group 4, included racist and sexist vilification. It occurred both inside and outside the work environment. The employer was found to be directly and vicariously liable for psychiatric injuries that the Court was told prevent Naidu from working for the rest of his life and will require future hospitalisation.
He was awarded $2 million damages, including lost salary of $70,000 a year until the age of 65, general damages of $200,000 and exemplary damages against News Ltd of $150,000.
Webb
v State of QueenslandWebb v State of Queensland [2006] QADT 8 (23 March 2006) (txt)
Webb illustrates questions about corporate liability, suggesting that it is insufficient for an employer to rely on promulgation of policies and provision of formal complaint mechanisms in a world where some people may be too embarrassed or intimidated to make a formal complaint and where policies are seen to be disregarded.
Rosalie Webb initiated action under the Anti-Discrimination Act 1991 (Qld), alleging that she was sexually harassed by a male co-worker during her employment with Queensland Health, a government entity with a sexual harassment policy and a complaints procedure. Her colleague allegedly engaged in unwanted (and unauthorised) touching, referred to her using sexual epithets, sent her unwanted pornographic email, and made comments about his sex life and her sex life.
Ms Webb notified her employer of her concerns in 2001 and 2002 through informal comments to her supervisor and manager, being told that she should speak to her colleague directly. Nothing could be done unless she lodged a formal complaint.
Qld Health defended its inactivity by claiming there was no vicarious liability for the bullying because it had taken "all reasonable steps" to prevent harassment from occurring in the workplace. The Tribunal disagreed, noting that employers must be proactive, with action taken prior to the making of a formal complaint (ie to prevent bullying) rather than merely in response to a specific complaint. Qld Health had failed to take appropriate action when it became informally aware of the harassment in 2001.
The Tribunal noted questions about fairness in the handling of complaints but concluded that under the legislation a formal complaint was not a precondition for preventing bullying. It was insufficient for the employer to tell Ms Webb to ask another employee to stop bullying.
Qld Health was ordered to pay damages of $14,665 to Ms Webb.
Nikolich v Goldman Sachs JBWere
Nikolich v Goldman Sachs
J B Were Services Pty Ltd [2006]
FCA 784 - here
Peter Nikolich, a private investment adviser, complained to his employer, Goldman Sachs J B Were, about the behaviour of his immediate boss. He said that he was subjected to a series of malicious personal attacks, verbal abuse and insults, and his clients had been reallocated to other colleagues. He went on sick leave and was then told that Goldman considered that his employment was over.
In subsequent litigation court he successfully argued that his employer's failure to deal with the complaint quickly and effectively breached Goldman's own policies and procedures, constituting a breach of his employment contract. He sought substantial damages for psychological illness caused by bullying.
The Court agreed that there had been bullying and a breach of contract. It noted that when becoming a Goldman employee he had been required to sight and formally acknowledge theWorking with Us policy document that featured provisions regarding harassment, integrity, safety and grievance procedures.
Wilcox J held that the employer's policy manual (including Working With Us) formed part of the contract and that Goldman had failed to comply with the provision promising to "take every practicable step" to protect his "health and safety". Although damages are ordinarily not recoverable for disappointment and distress, there is an exception for psychiatric illness as personal injury. In this instances such damages were not too remote (ie the illness was attributable to the bullying and its mishandling in breach of Goldman's policy manual). Nikolich was accordingly awarded some $500,000 in damages.
In 2007 the Full Court of the Federal Court inGoldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120 upheld that decision, including the award plus interest. It awarded Nikolich 90% of his costs regarding the appeal but overturned the original costs order on the basis of restrictions in theWorkplace Relations Act 1996 (Cth).
Hellsing v British Aerospace
Stig Hakan Hellsing v British Aerospace Australia Ltd [2001] ACTSC 98 (17 October 2001) - here
Hellsing involved bullying that resulted in another target suffering from a major depressive illness.
Technician Stig Hellsing, employed by British Aerospace at the Tidbinbilla deep space tracking station in the ACT, had been bullied by a drunken night-shift supervisor for several years during the early 1990s. The station's management were aware of the environment but failed to take action. He gave up work in 1995, suffering the effects of stress, after he had been forced to move to a day shift (at a much lower salary) following difficulties with a redundancy requested as a way of dealing with the bullying.
British Aerospace as employer admitted liability for Hellsing's condition and did not contest his evidence. He was awarded $342,989, with suggestions that the amount might have been much higher if the Court had accepted particular claims about future earnings.
Peter Nikolich, a private investment adviser, complained to his employer, Goldman Sachs J B Were, about the behaviour of his immediate boss. He said that he was subjected to a series of malicious personal attacks, verbal abuse and insults, and his clients had been reallocated to other colleagues. He went on sick leave and was then told that Goldman considered that his employment was over.
In subsequent litigation court he successfully argued that his employer's failure to deal with the complaint quickly and effectively breached Goldman's own policies and procedures, constituting a breach of his employment contract. He sought substantial damages for psychological illness caused by bullying.
The Court agreed that there had been bullying and a breach of contract. It noted that when becoming a Goldman employee he had been required to sight and formally acknowledge theWorking with Us policy document that featured provisions regarding harassment, integrity, safety and grievance procedures.
Wilcox J held that the employer's policy manual (including Working With Us) formed part of the contract and that Goldman had failed to comply with the provision promising to "take every practicable step" to protect his "health and safety". Although damages are ordinarily not recoverable for disappointment and distress, there is an exception for psychiatric illness as personal injury. In this instances such damages were not too remote (ie the illness was attributable to the bullying and its mishandling in breach of Goldman's policy manual). Nikolich was accordingly awarded some $500,000 in damages.
In 2007 the Full Court of the Federal Court inGoldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120 upheld that decision, including the award plus interest. It awarded Nikolich 90% of his costs regarding the appeal but overturned the original costs order on the basis of restrictions in theWorkplace Relations Act 1996 (Cth).
Hellsing v British AerospaceStig Hakan Hellsing v British Aerospace Australia Ltd [2001] ACTSC 98 (17 October 2001) - here
Hellsing involved bullying that resulted in another target suffering from a major depressive illness.
Technician Stig Hellsing, employed by British Aerospace at the Tidbinbilla deep space tracking station in the ACT, had been bullied by a drunken night-shift supervisor for several years during the early 1990s. The station's management were aware of the environment but failed to take action. He gave up work in 1995, suffering the effects of stress, after he had been forced to move to a day shift (at a much lower salary) following difficulties with a redundancy requested as a way of dealing with the bullying.
British Aerospace as employer admitted liability for Hellsing's condition and did not contest his evidence. He was awarded $342,989, with suggestions that the amount might have been much higher if the Court had accepted particular claims about future earnings.
Australian cases 3
Bailey
Bailey v Peakhurst Bowling & Recreation Club Ltd [2009] NSWDC 284 | here
Carol Anne Bailey was employed as a casual bar steward by the Peakhurst Bowling & Recreation Club Ltd from 1998 until 2006, when at the age of 52 years old she had to cease work due to ill-health. The Club conceded that supervisor Tony Riley had subjected her to concerted workplace bullying over two years. That bullying included constant threats that she would lose her job, changing her work classification so that she lost pay and seniority, pressure to bend or break licensing rules, use of extremely vulgar language, pressure to resign her union membership, and falsely alleging a shortfall in the bar finances.
Unsurprisingly her health suffered. She took action against the Club, rather than her tormentor. The NSW District Court accepted that she had a serious chronic generalised anxiety disorder and post-traumatic stress disorder and depression. She was unlikely to fully recover and, given her age, was unlikely to return to paid employment.
She was sufficiently astute to maintain a diary over the period during which she was bullied, corroborating her other evidence. The Club admitted liability, conceding that it owed a duty of care regarding provision of a safe workplace. It also conceded that its breach was attributable to Bailey suffering an injury that resulted in a psychiatric disorder. The Court awarded $507,550 in damages, including $334,305 for future loss of earning capacity and $36,773 for future loss of superannuation.
Bailey Bailey v Peakhurst Bowling & Recreation Club Ltd [2009] NSWDC 284 | here
Carol Anne Bailey was employed as a casual bar steward by the Peakhurst Bowling & Recreation Club Ltd from 1998 until 2006, when at the age of 52 years old she had to cease work due to ill-health. The Club conceded that supervisor Tony Riley had subjected her to concerted workplace bullying over two years. That bullying included constant threats that she would lose her job, changing her work classification so that she lost pay and seniority, pressure to bend or break licensing rules, use of extremely vulgar language, pressure to resign her union membership, and falsely alleging a shortfall in the bar finances.
Unsurprisingly her health suffered. She took action against the Club, rather than her tormentor. The NSW District Court accepted that she had a serious chronic generalised anxiety disorder and post-traumatic stress disorder and depression. She was unlikely to fully recover and, given her age, was unlikely to return to paid employment.
She was sufficiently astute to maintain a diary over the period during which she was bullied, corroborating her other evidence. The Club admitted liability, conceding that it owed a duty of care regarding provision of a safe workplace. It also conceded that its breach was attributable to Bailey suffering an injury that resulted in a psychiatric disorder. The Court awarded $507,550 in damages, including $334,305 for future loss of earning capacity and $36,773 for future loss of superannuation.
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